Restitution as a Condition of Probation
- Steven Topazio wrote this February 9, 2020 at 4:13 pm
A defendant’s ability to pay is a consideration in determining whether to order restitution as a condition of probation.
In the case of Commonwealth vs. Kim Henry, 475 Mass. 117 (2016), the court addressed the issue of restitution as a condition of probation to the victim. The facts of the Henry case are as follows. The defendant was employed as a cashier at a Walmart department store in Salem. A Walmart video camera captured the defendant “free-bagging” items; that is, with certain customers, she placed some store items into bags without scanning the items at the cash register, so that these customers received these items without paying for them. As a result, a complaint issued in the Salem Division of the District Court Department alleging that the defendant stole the property of Walmart having a value of more than $250 pursuant to a single larcenous scheme on various dates, in violation of G. L. c. 266, § 30 (1). The defendant admitted to facts sufficient to warrant a finding of guilty, and the judge continued her case without a finding for eighteen months, with restitution to be determined at a later date.
The court concluded that in determining whether to impose restitution to the victim as a condition of probation and the amount of any such restitution, a judge must consider a defendant’s ability to pay, and may not impose a longer period of probation or extend the length of probation because of a defendant’s limited ability to pay restitution. In other words, the court can no longer impose a restitution order without first determining a defendant’s ability to pay prior to imposing a sentence. Following Henry, only after the judge has determined the appropriate length of the probationary period based on the amount of time necessary to serve the twin goals of rehabilitating the defendant and protecting the public, and in determining the defendant’s ability to pay, can a restitution order be imposed. A judge must consider the financial resources of the defendant, including income and net assets, the defendant’s financial obligations (such that restitution not cause substantial financial hardship), and the defendant’s ability to earn when imposing a restitution order.
The second issue addressed by the court in the Henry case was how to calculate economic loss when goods are stolen from a retail store. The court focused on whether the amount of the victim’s actual economic loss for purposes of restitution is the replacement value or the retail sales value of the stolen goods.
The court concluded that in determining the amount of restitution to the victim in cases of retail theft, the court held that amount of actual economic loss for purposes of restitution is the replacement value of the stolen goods unless the Commonwealth proves by a preponderance of the evidence that the stolen goods would otherwise have been sold, in which case the retail sales value is the better measure of actual loss.